Will Any Software Patents Survive?

In his Patent and Trademark Law column, Robert L. Maier writes: In recent weeks, the Federal Circuit has continued to affirm district court decisions finding software-related patents invalid for failure to meet the patentable subject matter requirement of 35 U.S.C. §101. At the same time, a petition for certiorari to the Supreme Court was filed seeking to challenge the availability of this very defense—a petition that, if heard by the Supreme Court, could have dramatic implications for U.S. patent litigation.

By Robert L. Maier|November 21, 2017 at 02:00 PM

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Robert L. Maier

In recent weeks, the Federal Circuit has continued to affirm district court decisions finding software-related patents invalid for failure to meet the patentable subject matter requirement of 35 U.S.C. §101. Indeed, since the Supreme Court decided Alice v. CLS Bank in 2014, over 250 district court opinions have been issued invalidating patent claims under §101—based on an invalidation rate that is reportedly well over 60 percent. See, e.g., Robert Sachs, “Alicestorm: April Update and the Impact of TC Heartland on Patent Eligibility,” Bilski Blog (last accessed Nov. 12, 2017). That trend continues through a series of recent Federal Circuit decisions. At the same time, a petition for certiorari to the Supreme Court was filed seeking to challenge the availability of this very defense—a petition that, if heard by the Supreme Court, could have dramatic implications for U.S. patent litigation.

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BlackBerry asked a Delaware federal judge on Tuesday to reinstate claims against a Nokia subsidiary accused of facilitating the infringement of 11 patents underlying BlackBerry’s 3G and 4G communications technology in the United States.

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